A new year brings new changes to our organizations, employment relationships, laws, regulations, handbooks and policies. As more states continue to pass state specific legislation, we need to ensure that our handbooks and labor posters are updated accordingly.

Below are 5 areas to watch related to employee handbooks:

Workplace Conduct and Social Media: Under the new administration, we could see more flexibility in social media policies (pro-employer). Social media is a concern in many organizations, ensure that your policy is legal, up-to-date and not overreaching.

Arbitration Agreements: There are multiple lawsuits in federal courts related to employer arbitration agreements. These decisions can impact our organizations. I have not implemented arbitration agreements. However, they are growing in popularity.

Sexual Harassment/Harassment Policies: This speaks for itself. California and Maine have modified their current laws related to sexual harassment, we could see significant changes in New York State, as stated by the Governor recently. Ensure that there is a zero-tolerance and retaliation policies in place, and all employees are trained on current policies and procedures. Organizations need to be proactive and not reactive to issues.

Parental Leave: Paid Family Leave was effective January 1, 2018. Ensure that you have updated policies and handbook language to reflect this significant legislative change. The state has a website full of information to utilize as we move forward in 2018.

Disability and Other Accommodations: Review language related to the ADA, FMLA and medical marijuana. Medical marijuana law(s) continues to evolve. “In 2017, several courts ruled that registered medical marijuana users who were fired or passed over for jobs because of their medicinal use could bring claims under state disability laws.”[i]

As laws continue to evolve, now is the time to review handbooks, policies and procedures. If you are unclear on a path-forward or what to look for, seek guidance. Do not assume a Google search will provide legal and accurate information, draft handbook language or valid training material.

2018 IRS Mileage Rate:

“Beginning on Jan. 1, 2018, the standard mileage rates for the use of a car (also a van, pickup or panel truck) will be:

5 cents for every mile of business travel driven, up 1 cent from the rate for 2017.

18 cents per mile driven for medical or moving purposes, up 1 cent from the rate for 2017.

14 cents per mile driven in service of charitable organizations, unchanged from 2017.”[ii]

As always-if you feel uncertain or want an extra set of eyes, finding a consultant or strategic legal partner is a good idea. For more information about these subjects, click on the links here or reach out to schedule a meeting and consultation.

As we near the end of 2017 and begin planning for 2018, leaders need to be aware of upcoming changes and potential changes in New York State and at the federal level in 2018. The law continues to evolve, which causes greater complexity for organizations throughout the country. Proactive knowledge and planning will help any leader in managing through these significant changes.

Below are 3 upcoming changes in New York State:

Executive and Administrative Exemption: The federal FLSA has an overtime threshold at $455 per week. In NY State (Southern Tier), the threshold for Executive and Administrative positions is $727.50 per week. This will be increased to $780.00 per week after 12/31/17. We could see changes to the federal FLSA in 2018, under the current administration, but no changes have been decided, currently.

Minimum Wage Increases: Minimum wage will increase on 12/31/17, from $9.70 per hour to $10.40 per hour in the Southern Tier. The rates vary in NYC and Long Island, but they also increase. Watch for wage compression in your salary schedules.

Paid Family Leave: This is a significant change throughout the state and will impact most organizations. Ensure that your organization is prepared for the change on January 1, 2018.

Below are 3 potential changes to watch in 2018:

NY State Call-In Pay Proposal: If passed, this law will be a significant change to the call-in pay, employees wearing a pager and scheduling laws in New York State. This is currently a proposal and has not been finalized yet. More to come in 2018

Medical & Recreational Marijuana: Continue to watch for changing legislation in the state and at the federal level that could impact medical marijuana legislation. These laws continue to evolve at the state level throughout the country.

Salary History Requirements: These laws have changed in certain states and cities throughout the country. We could see more change to these laws, locally and nationally.

Other changes to monitory; ban the box, federal exempt level changes, federal minimum wage, FMLA, healthcare, tax legislation, NLRA changes (significant changes proposed under the new administration) and immigration legislation. Be proactive in your approach to these changes and ask for guidance if you are confused or unclear on expectations. Enjoy a safe & Happy New Year!

On Sunday, November 26, 2017, employers in New York City were required to be compliant with the new employee-scheduling laws. The laws impact “retail” and “fast food” employers throughout the city. These significant changes impact; breaks between shifts, predictable hours and on-call scheduling. These laws do not impact employers in Upstate New York, however, we should be aware of any changes impacting entire industries.

Below is a summary of the 5 legal changes to the NYC fast-food and retail industries:

Voluntary paycheck deductions: This new change allows fast-food employees to designate part of their salary to a non-profit organization. Employer’s must deduct from paychecks and provide the funds to the non-profit organization.

Rest between shifts: This rule establishes time between shifts and bans “clopening” shifts. When an employee works a closing shift one night and opens the next day. The law prohibits these consecutive shifts unless there is an 11-hour break between shifts. However, employees can agree to clopening shifts, but must be paid $100 each time.

Extra hours: Employers must now post additional hours for part-time workers before hiring new workers. The communication must be posted at the worksite and sent electronically. “Employers would only be required to offer hours to current employees up until the point at which the employer would be required to pay overtime, or until all current employees have rejected available hours, whichever comes first.”[i]

Predictable scheduling: Requires employers to provide new hires an estimate of their work schedule at the start of their employment. Employers must now communicate to their existing staff their schedules 14-days in advance. “If employees receive schedule changes with less than 14-days of notice, they must be paid a premium between $10 and $75, depending on how little notice they receive.”[ii]

On-call scheduling: Prohibits certain retail businesses from requiring workers to be on- call. The new law also states that employers cannot cancel, change or add shifts with 72-hours and they must post the schedule 72-hours in advance. There are additional exceptions for workers covered by collective bargaining agreements.

These significant legal changes are a result of the “fight for $15” movement, that we have seen in major cities across the United States. The fight for $15 has a goal of raising minimum wage to $15 per hour and add legal protections for many low-wage earners. If this impacts your organization, ensure you understand your obligations as an employer under the law. Communicate and train supervisors and managers on these changes. These are significant changes to the work relationship and will impact many organizations throughout New York City.

As we are approaching the end of 2017, understanding the federal and state overtime rules is necessary, as certain thresholds will change. The current federal law requires employers to pay non-exempt workers time and a half for all hours worked beyond 40 in a workweek. A workweek does not have to be the same as a calendar week, it can be defined as a regularly recurring block of seven consecutive 24-hour periods. The Fair Labor Standards Act, “reserves to states the right to enact more-generous overtime laws.”[i] In New York State, we see a difference in non-exempt and exempt salary definitions for the Executive and Administrative exemption definitions, which currently follow the FLSA definition on duties tests.

Below are 3 definitions in federal and state overtime pay rules:

Holiday, Vacation, PTO and Sick Leave OT Accrual: Under current federal and NY state FLSA regulations, overtime does not have to accrue on top of leave. If a holiday falls in a seven-day workweek and an employee works 40-hours, the 4 remaining days during the week, the employee would be eligible for 48-hours of pay at straight time rate. However, I have seen employers accrue overtime on top of leave time. Be consistent with your overtime payments and ensure it is in your policy. If you make a change to not accrue, communicate the change to your workforce.

Executive and Administrative Exemption: The federal FLSA has an overtime threshold at $455 per week. In NY State (Southern Tier), the threshold for Executive and Administrative positions is $727.50 per week. This will be increased to $780.00 per week after 12/31/17. We could see changes to the federal FLSA in 2018, under the current administration, but no changes have been decided, currently.

Multi-State Employers: Research current laws and regulations at the federal and state level. Laws across the country vary by state. Laws regarding overtime pay and double time pay will vary. Industry specific laws also exist in certain states. “Employers must also be industry-specific daily overtime rules-such as in Oregon, where manufacturing workers must be paid premiums working 10 hours.”[iii]

The Fair Labor Standards Act was established in the 1930’s and regulations have evolved, as our society has evolved. We continue to see significant changes at state levels and could see changes at the federal level, related to exempt and non-exempt thresholds, as well as minimum wage. December 2017 is approaching quickly, ensure that your executive and administrative positions are defined and legal under current NY State exemption law. Also remember that minimum wage will be increase in NY State. Are you prepared? Do you have updated labor and employment posters? If you are unclear in defining the roles, seek guidance.

New York State has communicated new forms that pertain to the upcoming January 1, 2018 roll-out of the Paid Family Leave, which will impact most employers throughout the state. Below are links to the six forms that have recently been released from the state and more information on PFL tax withholding’s for employees.

Employee Paid Family Leave Opt-Out: If an employee does not expect to work long enough to qualify for Paid Family Leave (a seasonal worker, for example), the employee may opt out of Paid Family Leave by completing the Waiver of Benefits Form.

Tax Information: Benefits paid to employees will be taxable non-wage income that must be included in federal gross income, taxes will not automatically be withheld from benefits; employees can request tax withholding, premiums will be deducted from employees’’ after-tax wages, employers should report employee contributions on Form W-2 using Box 14 – State disability insurance taxes withheld and benefits should be reported by the State Insurance Fund on form 1099-G and by all other payers on Form 1099-MISC.

We will continue to see updates from the state on forms and potential policy changes to Paid Family Leave as the year comes to a close. Continue to monitor for changes in policy and statewide communications. Work with your payroll and disability providers to ensure that deductions start on or before January 1, 2018. Be proactive in your communications with employees and ensure that policy, handbook and labor posters are up-to-date for the new year. If you have questions regarding New York State Paid Family Leave, seek guidance on the processes and procedures. This is a significant change at the state level, and it will impact most employers and employees in 2018.

As organizational leaders, we have the complex task of managing the workforce, coaching and counseling, disciplining, and at times, discharging employees. Conflict resolution is never easy, but necessary, for the workforce, employee morale and the organization. Avoiding difficult discussions or not addressing employee relations issues, can and will impact the organization. We need to be consistent and fair for all employees, while providing a due process for discipline to potential discharge.

Below are 5 elements of due process:

Expectations and Consequences: Communicating expectations, consequences and performance standards to the employee or workforce is the first step in the process. The write-up should document a performance problem, consequences of not meeting expectations and all metrics associated with the performance problem. Follow-up dates and action items are great to include in the first step.

Consistency: We need to treat all workers with consistent and fair rules. If we discipline one employee for a performance issue, all employees with the same issue should be disciplined. Inconsistent practices can lead to legal issues, employee moral issues, turnover and internal conflict.

The Discipline Must be Appropriate for the Offense: Review the “big picture” prior to making a decision on discipline and probable cause for termination.

Employee Response: The employee should be given the opportunity to respond during any investigation or administration of discipline.

Time to Improve Performance: If your organization is using progressive discipline, we do need to allow the employee time to improve performance. However, certain situations will dictate decisions regarding performance improvement plans and immediate termination. These situations need to be consistent and fair, throughout the organization.

Coaching and counseling, disciplining or terminating an employee is never an easy decision, but one that is necessary for the organization and rest of the workforce to grow and succeed. The definition of due process is an area we should design our policies and procedures around. Remember, as the employer, you have the right to change the policies. We need to ensure we communicate the changes to the workforce. Also, keep in mind Employment-At-Will doctrine, laws and regulations. This can vary, state to state and union versus non-union employers. Seek guidance if you need assistance on coaching, counseling, disciplining or terminating an employee. How we communicate the action/decision can have an impact.

With changing legislation surrounding Form I-9 compliance, organizations need to be proactive, to ensure accurate record keeping on all required documentation. This includes auditing I-9 records every few years, to ensure all information is up-to-date and forms are correctly filled out. The U.S. Department of Homeland Security’s Immigration and Customers Enforcement (ICE) has the legal right to review your organizations I-9 records at will.

Below are 4 considerations for an I-9 compliance audit:

Fill Out All Sections Accurately: The basic information on the I-9 from should be filled out completely and accurately. This includes; dates and names on all forms. “A construction company was recently penalized $228,000 for multiple compliance violations…submitting I-9 forms for dozens of employees with incomplete Sections 1 and 2.”[i] Take the time to review instructions and ensure that the employee has filled out the form properly. If not, correct the issues.

Employee Roster Information Updates: Ensure you have an accurate headcount list of current and past employees, prior to beginning an audit. Remember, employees hired after November 6, 1986 must have an I-9 on file. If an employee is missing an I-9, the organization must obtain one as soon as possible.

I-9 Documentation: “Documentation for former employees is only needed for one year after separation or three years from date of hire (whichever is later), so no need to clutter your files with unnecessary information.”[ii] Ensure that you are obtaining the required documentation from List A or List B and List C.

Necessary Signatures: This is consistent with the requirements mentioned previously. All forms need to be signed by an employer representative and the new hire employee. This includes remote workers. The process isn’t complete until the forms are verified for accuracy and contain the proper information with signatures.

The SHRM article quoted throughout, contains other examples of companies that failed to complete accurately and sign the I-9 forms and the fines for these violations. The form contains directions for both the employer and employee. Work through the steps and ensure that the forms are accurate and up-to-date, to protect the organization from any violations and fines. If you have questions about mistakes or conducting an audit, seek guidance and be open to suggestions. Proactive audits necessary to ensure compliance, as the laws and forms continue to evolve. Remember, using the new I-9 form is required now and has been in effect as of September 18, 2017. The link to the new form and other instructional information is here: Updated Form I-9

Some employment applications ask about criminal convictions for prospective employees, either written or on the online application. Ban the box legislation changes, have made it illegal for employers to ask prospective employees and job applicants certain questions related to criminal convictions (in certain cities and states), until the interview stage or until a conditional offer of employment is made. The rules within the jurisdiction vary, based on location and legislative requirements. Yes, that means more complexity related to posting positions, recruiting and interviewing in certain cities and states. “The trend of states and municipalities enacting these so-called “ban the box” laws is part of a movement to prevent employers from treating all criminal convictions as a sort of “Scarlet Letter” that has the effect of discriminating against minority applicants.”[i] For the purposes of this article, we will focus on New York and Pennsylvania laws.

Below are 6 ban the box laws in NY and PA:

NY-Buffalo: The law impacts private employers with 15 or more employees/contractors doing business with the city. Banning criminal history questions on the initial job applications.

NY-New York City: The law impacts all employers with four or more employees. No criminal inquiries prior to the conditional job offer.

NY-Rochester: The law impacts all employers with four or more employees and contractors doing business with the city. No criminal history inquiries until after the initial job interview or conditional job offer.

NY-Syracuse: The law impacts city contractors. No criminal history inquiries and background checks until after the conditional job offer.

PA-Philadelphia: The law impacts all employers with at least one employee in the city. No criminal background checks prior to the conditional job offer.

PA-Pittsburgh: The law impacts contractors and vendors doing business with the city. Banning criminal history inquires until the applicant is deemed otherwise qualified for a position.

The laws vary in the way they are written and the legal requirements for the employer in each location. The laws vary throughout the country, based on state or city requirements. Some states have no ban the box requirements, currently. As leaders, we need to understand the laws and know that a recruitment plan, job application and interview/offer process, that works in New York, might not work in California or Minnesota. Laws continue to evolve at both the federal, state and municipal level. These laws impact the questions we can ask and the information we can request before, during and after the job interview. If you have questions regarding Ban the Box legislation, seek for guidance. Changes occur quickly, and impact businesses of all sizes.

Workplace safety rules and regulations continue to evolve at the federal and state level, just as labor and employment laws and regulations have. As I have recently started revising a safety manual for a client, I now have a profound respect for workplace safety professionals. Because laws and regulations do vary at both the federal and state level, we as leaders need to be aware of changes in legislation, that can and will impact our organizations.

Below are 4 tips on complying with state and federal workplace safety standards:

Federal OSH Act: Passed in 1970, “covers most private employers and their workers. However, OSHA allows states to develop their own workplace health and safety plans, as long as those plans are “at least as effective” as the federal program.”[i]

Multi-State Employers: Currently, twenty-one states and Puerto Rico have OSHA-approved plans that cover government employees at the state and local level, as well as private employers. Five other states and the U.S. Virgin Islands currently have plans that cover only state and local government employers.

State Laws: States can have laws more stringent than the federal requirements and/or standards that are not addressed by federal OSHA. This is comparable to HR laws and regulations; minimum wage, paid family leave, exempt/non-exempt status, background checks, etc. Review state and local requirements, as well as OSHA approved state plans.

Compliance: Employers should review the federal requirements to ensure compliance and then review state compliance standards. “”Stay on top of the state plan regulations,” Martin said. “Assuming the state plan has the same regulations as federal OSHA may be a safe bet 80 percent of the time, but the differences can burn you.””[ii]

As we have seen under the current administration, laws and regulations continue to change. This will have an impact on OSHA standards at the federal level. Under the Obama administration, a law was passed that required certain employers to submit workplace injury and illness records through a portal on the OSHA website in July 2017. The Trump administration pushed compliance back to December 1, 2017, to evaluate the rule and requirements. Regardless, the electronic record keeping requirement can still be implemented at a state level, in certain states. Be aware of these changes and recognize the impact they can and will have on your organization. If you have questions, continue to seek guidance.

During the months of October and November, employers annually conduct open enrollment sessions for employees and family members. These informational sessions, communicate upcoming benefit changes, new costs and any other relevant information that will impact the employee or employees family. The open enrollment sessions also provide an opportunity for the employee and/or significant other to ask questions regarding benefits and costs. SHRM published, “6 Simple Ways to Improve Open Enrollment,” in August 2017. Additional information or resource material, will be helpful to us as leaders and to our employees who need the information to make the best decision for themselves and their families, related to benefits.
Below are 5 steps for a successful open enrollment period:

1. Prepare, Prepare, Prepare: Generate and disseminate information prior to open enrollment meetings. This will provide employees with the opportunity to review the information prior to the open enrollment sessions. Ensure that the information is communicated through the proper organizational channels and it is easy to understand. Do not make benefit information over complex or complicated. Develop a frequently asked questions sheet that will provide assistance to employees when thinking about questions and possible solutions. We cannot cover every questions, this format will help generate thought and answers.

2. Focus on the Employees: This step encompasses step #1, in that we need to prepare information for the workforce that is relevant and timely. Knowing your employees will add value to focusing on specific tools and resources for the open enrollment process.

3. Identify Needs: “Review the results of previous years’ open enrollment efforts to make sure the process and the perks remain relevant and useful to workers.” Do you send out a survey asking for feedback from last year’s open enrollment? What are the demographics of the workforce? Do you have metrics associated with benefit usage?

4. All Available Resources: Are we utilizing all the available resources inside and outside of the organization? Is the marketing department to develop material and communications? Are we partnering with brokers, insurance carrier and vendors to provide sufficient resources during the open enrollment process? Are we communicating all information? Remember NYS Paid Family Leave. Be creative. If you were in the employee’s shoes, what resources would add value and engagement throughout the enrollment process? Don’t assume that the carrier will say no, if you never ask, you will not know the answer.

5. Spouses Involvement: Many organizations provide the opportunity for spouses and domestic partners to be involved in the open enrollment process. Meeting times might need to be changed from day to night or weekend sessions. Other options could be webinars or one-on-one meetings. Involving the spouse will generate more questions and continued engagement.

Open enrollment can be a complex and confusing process for any employee. As leadership, we need to be aware of the needs of our workforce and find proactive solutions to manage and communicate these complexities. “Benefits enrollment strategies are always evolving. What worked last year may not be relevant this year. But you can’t go wrong putting employee’s needs first.” If it was you, what questions would you have during open enrollment?